August, 2006: Justice of the Peace Reassigned
The Arizona Supreme Court reassigned longtime Justice of the Peace, Jacque McVay, from the bench August 18, 2006, due to a pending investigation. Keith Stott, director of Judicial Conduct confirmed that action was taken after a complaint was filed against the judge.
McVay was elected in 1988 and has since presided over the Dreamy Draw Precinct. She handled small claims, civil suits, traffic violations, and criminal misdemeanors. According to sources, she has a long history of tardiness, often leaving litigants, witnesses, and counsel waiting for up to an hour. The Arizona Commission of Judicial Conduct first reprimanded McVay for tardiness in 1994 and then again in both 2003 and 2004. Last year, she was censured after court employees reported that she was consistently 30 minutes late for morning hearings and 60 minutes late for afternoon hearings. The commission findings reported that she would often leave for extended periods without explanation.
The contents of the filed complaint have and will be kept confidential until the investigation concludes. Chief Justice Ruth McGregor wrote that just because McVay was reassigned does not mean, “formal charges against thee judge are imminent.” While in the midst of the investigation, McVay will continue to receive her $84,500 salary. She has been reassigned to new duties that will be supervised by Presiding Judge Barbara Mundell of Maricopa County Superior Court. Details of McVay’s new duties have not been released.
Source: The Arizona Republic
June 2005: State v. May, Court of Appeals Holds That a Police Officer can be Sufficiently Qualified to Draw Blood
Background
Late one evening in November 2002, a Pima County sheriff's deputy saw defendant May driving in excess of the speed limit. He pulled behind May's vehicle, saw it temporarily veer off the road, and directed May to stop. In May's car were two passengers: an adult female and a minor male.
Another officer arrived on the scene and arrested May for DUI after observing symptoms of intoxication. During the investigation, an adult male appeared on the scene and told the arresting officer the male passenger was his 13-year-old son. With May's consent, Deputy Curtin, a sheriff's department phlebotomist, drew a sample of May's blood at the scene. Testing showed he had a 0.195 percent blood-alcohol concentration.
Attempts to Suppress the Blood Test Results
May challenged the blood test results, claiming the seizure of his blood violated the Fourth Amendment to the United States Constitution. May argued the procedure used to take his blood sample was not "performed in a reasonable manner" and that violated his Fourth Amendment right against unreasonable search and seizure.
Court’s Ruling
The trial court found the seizure reasonable because the procedure Curtin used resulted in only a "slightly higher" risk of complications "in a field setting" than those of a clinical setting.
The Court of Appeals found no basis for disturbing that ruling. The court reasoned that May consented to having his blood drawn. And Curtin testified that, based on his knowledge and training, the standard of care required him to clean the arm and not cause any injury to the patient. In addition, a witness testified that on-site and clinical testing are equally reliable, and both present possible risks to the patient but, in her opinion, "the risk of injury goes up" with on-site testing.
May also argued that the trial court should have granted his motion to suppress because Curtin was not a trained phlebotomist. However, the Court of Appeals responded by stating that, in Arizona, a physician, registered nurse, or other "qualified person" may withdraw blood from the operator of a vehicle to determine his or her alcohol concentration under Arizona law. See A.R.S. 28-1388(A).
In sum, the Court of Appeals ruled that: (1) the blood draw conducted by the deputy while the defendant and deputy stood at the rear of the police car was not performed in an unreasonable manner; and (2) the deputy was sufficiently qualified as a person competent to draw blood to determine the defendant's blood-alcohol concentration after the traffic stop.
The case was, however, sent back to the trial court because the State failed to prove another element of the case.
April 2005: State v. Storholm, Court of Appeals Holds That a Police Officer Can Be Sufficiently Qualified to Draw Blood.
Background
Phoenix police officer Thomas Tieman stopped the defendant for driving without his headlights and for following a vehicle too closely. The officer detected an odor of alcohol on defendant's breath and observed that the defendant had fumbling fingers, bloodshot and watery eyes, and slurred speech. After the defendant failed field sobriety tests, officer Tieman arrested him for driving under the influence of intoxicating liquor. The defendant was taken to a police van, where another officer advised the defendant of his rights. The defendant agreed to take a breath test, which revealed a breath-alcohol concentration of 0.117 percent.
The defendant was not provided a sample of his breath, although the machine, the Intoxilyzer 5000EN, was capable of being fitted with an attachment that could preserve a sample. The defendant was informed of his right to obtain an independent chemical test, but he failed to do so.
The defendant was charged with aggravated driving while under the influence of intoxicating liquor and aggravated driving with an alcohol concentration of 0.08 percent or higher in his body within two hours of driving a motor vehicle, both Class 4 felonies.
Attempts to Suppress the Blood Test Results
The defendant unsuccessfully moved to suppress the results of his breath test because the defendant was not provided a sample of his breath. At trial, the defendant stipulated that he knew, or had reason to know, that his license was suspended at the time he was arrested. A jury convicted the defendant on both charges. The court placed the defendant on probation for two years and also sentenced the defendant to four months of incarceration.
Court’s Ruling
The only issue on appeal is whether Constitutional due process requires law enforcement to provide those accused of driving under the influence with their own breath samples for independent testing.
The Court of Appeals stated the record failed to show either that the defendant was totally unable to obtain a breath sample and have it tested through another source, or that any difficulties were created by the State. In support of his contention, the defendant merely asserted that the manufacturer of a particular machine did not sell the machine to private persons.
The court went on to state that the record failed to show that the defendant had even attempted to obtain independent testing of his breath. The defendant did not offer any evidence that the State had created the difficulty he identified in obtaining a breath sample. On the contrary, the record showed that the defendant was informed of his right to seek an independent chemical test but did not seek one. He could have obtained a blood test. Consequently, the difficulty that the defendant identified in obtaining an independent breath sample failed to create a due process violation.
In sum, the Court of Appeals held that Constitutional due process did not require law enforcement to provide a defendant with his own breath sample for independent testing.
January 2005: Arizona Supreme Court Creates New Test for Jury Trial
In the case of Derendal v. Griffin and Phoenix, the Arizona Supreme Court has created a new test for determining whether misdemeanor defendants have Constitutional rights to jury trials. Many are concerned that the new standard may impact whether a person charged with DUI will be entitled to a jury trial.
The Arizona Supreme Court stated that courts are no longer to consider the “moral quality” of misdemeanor crimes. Now courts will focus primarily on the crime’s severity of punishment. However, at the present time, Arizona law still gives a DUI defendant the right to a jury trial.
